Grand Juries and Racial Profiling

First, a St. Louis county grand jury declined to indict a white police officer in the shooting death of Michael Brown, and now a grand jury in Staten Island has also declined to indict a white police officer in the death of Eric Garner.

Josh Voorhees of Slate magazine finds it impossible not to pair the two cases:  white officers, black suspects, unarmed, public demonstrations, and no indictment (see here). Except Voorhees forgets to mention that both men resisted arrest and both Brown and Garner were as large or larger than an NFL offensive lineman (the liberal Washington Post cannot even bring itself to use the words “resisting arrest,” instead calling the interaction an “encounter”).

Yet these facts help explain what happened. When a police officer faces resistance from a suspect that outweighs him by 100 to 150 pounds, it’s not hard to understand why he might quickly use lethal force. The uncertainty surrounding these circumstances creates the policing equivalent of the “fog of war.” And a suspect who continues to walk toward an officer, even with hands raised, is not surrendering. He is only creating more confusion that makes it even more likely that something bad will happen.

Although the evidence indicates that Michael Brown did not have his hands up, the hands-up gesture has become the symbol of protesters everywhere, including several members of Congress. Recently, five players on the NFL’s St. Louis Rams raised their arms in the hands-up gesture as they walked onto the field. By continuing to move forward instead of standing still, they at least got part of Brown’s action right. Maybe next time, the players will light a joint and reenact the strong-armed robbery portion of Brown’s activities on that morning.

Many people who support the Ferguson grand jury’s decision are surprised and upset by the Staten Island decision. Voorhees is not surprised that neither grand jury voted to indict because, as he explains, the default setting in our criminal justice system is to believe that an “on-duty officer who takes another citizen’s life was justified in doing so.”

Voorhees believes that this basic assumption should be changed, but given the difficulty of police work, the “justified” presumption is a reasonable starting point. Although the presumption sets up an obstacle, it is rebuttable, so strong evidence can overcome it. The Staten Island grand jury obviously found the evidence insufficient to overcome the presumption for a criminal action, which requires some degree of intent (although the case will continue through civil proceedings that are sure to follow).

Both grand juries did their job – the easiest thing in the world for the jurors would have been to wash their hands by indicting the police officers and letting someone else make the ultimate decisions. Unfortunately, liberals are already pointing to these cases as additional examples of system-wide racial profiling and mistreatment of minorities and the Obama administration is ready to announce new racial profiling regulations.

With a population of 315 million, individual incidents of police misconduct are bound to pop up in this country, but large scale racial profiling is unlikely. Liberals call it profiling if members of a group are disproportionately stopped by the police when compared with the proportion of that group in the general population. But as many have pointed out, the proper comparison is between the proportion of those stopped by the police with the proportion of the group in question engaged in the behavior for which the police stop people.

A famous study of racial profiling on the New Jersey turnpike in the late 1990s illustrates the proper approach. The study showed that although African-Americans comprise 13% of the population, they accounted for 25% of the speeders on the turnpike. Profiling could be claimed only if African-Americans accounted for more than 25% of the stops, not 13%. In fact, they accounted for only 23% of the stops so they were under-stopped.

Skepticism about systemic profiling is based on understanding that crime rates are not the same for all ethnic and racial groups. But liberals cannot accept this fact and continue to assume that profiling is rampant and widespread. They are deniers who will work to undercut law enforcement wherever they can, to the detriment of African-Americans who make up the majority of the victims of crime.

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